Judicial conduct, and its regulation, have been longstanding concerns in India. In 2010, a former Union Law Minister swore an affidavit stating that eight of the last sixteen Chief Justices of India had been corrupt. Allegations of corruption and misconduct have only increased since then. Four of the five most recent Chief Justices – Justices Khehar, Misra, Gogoi and Ramana – have faced serious allegations of corruption or misconduct.

In April 2019, a member of staff at the Supreme Court alleged sexual harassment by Chief Justice Gogoi. The current Chief Justice Ramana also faced serious allegations of corruption and interference in the functioning of a High Court. None of these allegations were thoroughly investigated. Similarly, despite facing serious allegations, Justice Khehar did not face an inquiry, and inquiries against Justice Gogoi and Justice Ramana were abruptly closed. Proceedings to remove Justice Misra from his post failed, mostly for political reasons. These high-profile controversies underline the significant accountability deficit in the higher judiciary.

Unsurprisingly, the international barometers on corruption, the rule of law and public integrity paint a grim picture of the state of public governance, including the judicial administration in India.

Disappointingly, however, neither the judiciary nor Parliament has been able to establish robust regulatory regimes to address the growing concerns of judicial corruption and misconduct. On the contrary, the judiciary has succeeded in evading external scrutiny, painting the reforms aimed at establishing an arm’s-length regulatory institution as a threat to judicial independence.

As a result, judges in India continue to be regulated through in-house mechanisms. These mechanisms grew out of a need to prevent external influence from creeping into judicial processes. For example, they prevent external forces from influencing the judiciary under the pretext of regulating judges. As the in-house mechanisms are exclusively administered by senior judges, they raise some peculiar challenges. However, first, let us see how the judiciary and in-house regulatory regimes are structured and administered.

The hierarchy of courts

The Constitution of India has established a three-tier judiciary:

• The Union Judiciary (the Supreme Court; SC)
• The State Judiciary (High Courts; HCs)
• Subordinate Courts

However, in reality, the structure is not so straightforward. For instance, the subordinate courts are under the administrative and supervisory control of the High Courts within their jurisdiction; but the High Courts are not similarly subordinate to the Supreme Court.

The in-house mechanisms

Their administrative autonomy has allowed the High Courts to establish in-house mechanisms to deal with judicial conduct regulation. Every High Court in India has an in-house 'vigilance cell', headed by a senior district judge, to monitor and facilitate disciplinary investigations against judges and court officials. The vigilance cells are institutionally and administratively a part of their respective High Court. The remit of vigilance cells includes the judges and staff of subordinate courts, as well as the staff of the High Court itself. The vigilance cells mostly work under the supervision of the High Court Chief Justice.

For the higher judiciary (i.e. for the High Court and Supreme Court judges) , a constitutional removal procedure does exist as an ultimate censure, but it is rigid and long-winded. For this reason, the Supreme Court had to develop an in-house oversight mechanism that operates through judicial rulings – effectively regulating the judiciary by precedent, rather than through policy. This is the mechanism through which complaints of misconduct or corruption are handled. The in-house procedure for the higher judiciary is administered by the Chief Justice of India.

The key concerns and challenges of the in-house mechanisms

The in-house mechanisms that govern the judiciary at every level have been criticised as non-representative, opaque, informal and ineffective. Furthermore, these mechanisms have implications for 'individual' and 'internal' judicial independence – implications that have only recently been examined.

While it is true that involving senior judges in judicial regulation may help to strengthen the institutional independence of the judiciary, their dominant position could also undermine individual and internal independence. This is particularly true where the decisions of senior judges are not subject to review or external scrutiny (see para. 38 of UN document A/75/172).

A recent study analysed quantitative and qualitative data from 110 subject experts (judges, lawyers and academics). The research confirmed that in-house vigilance mechanisms are not only seen as inefficient in enforcing judicial accountability, but also a danger to individual and internal judicial independence:

• Two-thirds of respondents had either ‘very low’ or ‘low confidence’ in the efficacy of vigilance mechanisms in upholding the independence of the lower-court judges (see section V of the study).
• Further, most of the respondents (74.25%; n = 101) either strongly agreed or somewhat agreed that vigilance mechanisms can be misused against subordinate court judges (see section V).
• A majority of judges (56.25%; n = 16) did not think that the vigilance mechanism protects them from false and vexatious complaints (see section IV.i).
• Most of the legal academics (77.78%; n = 36) concluded that the in-house procedure for the higher judiciary is ineffective in tackling judicial corruption (see section IV).
• Likewise, a strong majority of the legal academics (61.11%; n = 36) viewed the in-house procedure as not effective in dealing with judicial misconduct cases (see section IV).

The way forward

International standards – for example, the Bangalore Principles of Judicial Conduct 2002 – require that judicial conduct regulation regimes should be independent and impartial. Accordingly, India’s regulatory regimes should be institutionalised by establishing arm’s-length bodies with adequate representation from all stakeholders. Regulatory regimes across judicial hierarchies should comprise representatives from the Bar, civil society, laypersons, and judges. Such regulatory regimes must have a comprehensive legal framework requiring fair, objective and consistent application of regulatory protocols.

The senior judges exercising disciplinary or supervisory powers should also be held accountable for the abuse of the disciplinary process. All too often, disciplinary authorities abuse their powers, but there are no robust review or appeal forums to hear the judicial officeholders affected by unjustified disciplinary actions. Only the concerned High Court or the Supreme Court can review the disciplinary decisions of a High Court. Therefore, the judicial officers have to approach the same High Court to challenge an adverse disciplinary decision. There is an unhealthy intersection of administrative, disciplinary and judicial authority of the High Courts which would endanger individual and internal judicial independence.

Further, the overwhelming focus on institutional independence must change, in order to shift the public perception that regulatory mechanisms are overly sympathetic to judges. Individual and internal judicial independence should be adequately emphasised from a regulatory perspective. Judges facing the disciplinary process must have minimum safeguards of fair trial and due process and they should be shielded from false and vexatious complaints.

Likewise, the judiciary ought to have robust internal mechanisms to consider the representations of individual judges in matters of deployment, appraisal, promotion, retirement and removal. Judges should also have whistle-blower protection to expose irregularities, corruption, and abuse of power within the judiciary. Regrettably, most of these judicial regulation measures are lacking in India.

India’s in-house regulatory regimes, in their present avatar, fail to uphold judicial independence and effectively enforce judicial accountability. The senior judiciary and union and state legislatures should work together to reform regulatory regimes. The reforms should sufficiently safeguard individual and internal judicial independence and adequately emphasise judicial accountability needs. Likewise, the regulatory regimes ought to function transparently and openly.